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FINANCE AND PUBLIC ADMINISTRATION REFERENCES COMMITTEE
02/09/2003
Inquiry into members of parliament staff

CHAIR —Welcome. At the risk of repeating myself, our apologies to you also for keeping you waiting—not quite as long as we kept Dr Uhr waiting—and delaying your appearance. We appreciate your patience. You have been made aware of the rights and obligations relating to appearing before the committee and the details regarding the application of parliamentary privilege. Also, as you would be aware I am sure, we prefer all evidence to be taken in public, but you can request to go into camera if you feel it is necessary and we will deal with such a request at that time. Are there any opening comments that you would like to make?

Dr Maley —When I put my submission in to the committee, I was employed at the Australian National University, but I need to point out that I am no longer teaching there. I am appearing as someone who has done some research on ministerial advisers. In fact, I did a major piece of research in 1995 and 1996, which was my PhD. It was about the behaviour of ministerial advisers in the Keating period. It was based on 41 interviews with advisers and my interviews with 13 ministers who worked with those advisers and with 10 public servants who worked with those groups of advisers and ministers. Those public servants were at the assistant secretary and first assistant secretary level, which was the level that the advisers were dealing with.

The value of that study is that I wanted to look at what advisers did on a daytoday basis, and so I was not just studying a particularly controversial moment. I wanted to see what non-controversial things happened on a day-to-day basis across a range of portfolios. I interviewed junior as well as senior ministers and junior as well as senior staff. I think I got a very comprehensive picture about how advisers operate, how they work with their ministers, how they work with senior public servants and how they work together as a group. I speak to you today on the basis of that research.

CHAIR —Thank you. Is there anything else you want to add before we go to questions?

Dr Maley —Yes, very briefly. In my submission I have put forward the view that advisers exist only as extensions of ministers and that, as they are the ministers' agents, that should be their status. In the study that is how ministers saw their advisers and how the advisers saw themselves. That was the fundamental basis to the relationship. I think it would be dangerous to start to legitimise an independent status for advisers as possessors of executive authority. They should not have that, as it would drive a wedge between them and their ministers, and the ministers ought to be the ones taking responsibility for their actions. Reasserting that link is the key to improving their accountability.

I do not believe that it is impossible for ministers to take responsibility for the actions of their staff, and I think the degree to which the numbers of staff make that impossible has been overstated. When I did my study in 199596, a senior Keating minister had seven political and policy advisers and one media adviser, and a noncabinet minister had 3.5 advisers and may or may not have had a media adviser. When we talk about 300 staff the numbers look huge. But, in reality, the people who actually issue instructions on behalf of the minister comprise a relatively small group and, in my view, ministers can take responsibility for and can know of what they do.

At the same time I think there is an urgent need to clarify what is appropriate behaviour of advisers and to better regulate and manage that behaviour. In my study there was a complete lack of guidance given to advisers about how they should behave. There was no training. They were thrown straight into the job and usually took their cue on how to behave from the minister or their peers. Usually they said it took them a year to get on top of the job and understand how to do it, and often they only stayed a couple more years after that. I think there is a real need for guidance for advisers.

Many of those coming in from outside the Public Service had no understanding of administrative law or the basis of Public Service principles. A code of conduct would be very useful in articulating those values and also in making it clear that the minister and the government want them to behave that way. I think there is a problem with advisers dealing inappropriately with public servants, but they need to know that they are dealing inappropriately with them. They also need to know that the minister will not tolerate that and that he or she wants another type of behaviour.

Just in closing, I think the code of conduct could be very useful in not only promoting appropriate behaviour but also broadening the control of advisers. When I did my study, the minister was the only person who had control over their advisers and who had responsibility for their behaviour. But if you were to mimic the Public Service code of conduct, where the head of the department has responsibility for selecting an investigator to investigate breaches of conduct and then the head of department has responsibility for choosing and bringing about sanctions, you could empower the Prime Minister to select someone to investigate breaches of the code and also to recommend sanctions. In that way you could broaden the responsibility from where it just rests with the minister to where it rests with the whole of government, because I think the government as a whole should have responsibility for their behaviour.

Senator WATSON —Who should draw up this code of conduct that you refer to and who should enforce it?

Dr Maley —I think it should be done in a consultative way, involving ministers and staff; possibly it should be broader than that, with the parliament and the Public Service having input as well. It could be fairly basic, in a sense, and be modelled on the ministers' guide to behaviour: acting with integrity and honesty, not knowingly deceiving or misleading the parliament or the public, and respecting the nature of the Public Service and not asking them to do things that would be inappropriate. A code of conduct could state that it is assumed that advice that has been provided to an adviser has been provided to a minister. You could put statements in the code that strongly reinforce that link.

As I mentioned, I think perhaps the Prime Minister and the Prime Minister's office should be empowered in administering the code. Some of the advisers I interviewed who worked for the Prime Minister were frustrated at their inability to act against advisers in other ministers' offices whom they saw as being incompetent and dangerous because they were not trustworthy. But they really were not empowered to act against those advisers—this is in my study—and they felt they should have been. So I think broadening the responsibility to the Prime Minister and the Prime Minister's office would be useful.

Senator WATSON —Basically, apart from the code of conduct you refer to, your submission is pretty much the status quo. Am I correct in that saying that?

Dr Maley —No, I do not think so, because I do think there is a problem. The problem is that the accountability of ministers for their advisers' behaviour is not strongly enough acted upon at the moment. I think that needs to be reasserted and that structure needs to be tightened. I do not think the status quo is right. As I have just said, I think advisers' behaviour does need to be far better managed and regulated than it currently is.

Senator WATSON —You have used the words `acted upon'. Dr Uhr put forward the concept of a ministerial standards commissioner who would report back to the parliament, which would provide a few more teeth and a parliamentary input. How would you view that?

Dr Maley —How would that person receive information about the behaviour of advisers? Would they be an investigator?

Senator WATSON —Yes. They would be a recipient of information and an investigator, and they would be responsible for reporting to a parliamentary committee.

Dr Maley —As I said in my submission, I think it is important to see advisers as agents who are acting for their ministers. Any proposal to bring advisers before parliamentary committees or to get them to testify before commissioners would have to involve very strong protections on the privacy of the minister's transactions with that adviser. At the moment we do not have those sorts of mechanisms to protect ministers, who are very exposed in their relationships with their advisers and who I think have a right to have their privacy protected. Until you could establish a strong system there, I do not think it would be appropriate.

Senator WATSON —With these people being paid from the public purse, shouldn't the parliament have some input in terms of enforcement of codes of conduct and that sort of thing?

Dr Maley —Certainly I think parliament should hold the government and the ministers accountable for how they are managing their staff and how they are administering a code of conduct. I think ministers should be answerable for employing staff who are not competent and for allowing them to remain on their staff and not acting against them.

Senator WATSON —Would you like to comment on the Blair government's approach of handing it over to the parliament? Is that relevant to the Australian situation?

Dr Maley —I am not familiar with the full extent of that government's approach. I know that their code of conduct for advisers is different because advisers there have a very different status, as they are temporary civil servants. I know that really differentiates their approach from that taken here. I think we are in a better situation here, where such staff are not treated as public servants but recognised as quite a different category of political personal staff.

CHAIR —You mentioned a moment ago something that is also in your submission. You state:

One of the prime ministerial advisers in my study said that the Prime Minister's office had a responsibility to monitor and control the behaviour of ministerial advisers generally; however, by and large this did not occur.

You argue that it should occur—that the Prime Minister's office or the Prime Minister should have a greater say there. What was the basis for your observation that the Prime Minister's office had the responsibility? Does that come from any specific instrument or decision?

Dr Maley —No, I think that was the problem. The Prime Minister's staff felt they had responsibility for ensuring that advisers worked well together and that the government was cohesive and operating effectively at the adviser level; ministers expected that of them. In fact, some of the ministers I interviewed were critical of the Prime Minister's staff for not `knocking heads together' a bit more than they did. They had that expectation of the Prime Minister's office that they would have a level of control over the staff and how they operated together. So that was the perception of the advisers and the ministers there, and yet they really did not have a mechanism to do that and relied on their own power or on how much power they could get if the Prime Minister wanted to get involved in talking to a minister about it; they did not have any mechanism or any articulated responsibility, though it was implicit.

CHAIR —How much of that might have related to just the internal workings of the government and the ministry in the political environment, if you like, as distinct from the role of ministerial advisers in liaising with, interacting with, the Public Service and across departments? If ministerial advisers are political advisers, as we understand, as well as having these other roles liaising with the Public Service, one is going to expect that, with competing ministers, competing political considerations within parties and within government and so on, we are always going to hear about frustrations of people within ministers' offices and within the PM's office. It is nothing new.

Dr Maley —I think it is right to say that the way advisers dealt with their departments was rather unknown to people such as the Prime Minister's advisers. They did know, as you say, about how the advisers worked together and how they negotiated with each other. They had a very fine sense of people's reputations in that environment. In relation to how the advisers worked with their departments, that was fairly atomised, actually. People possibly did not have a great idea about how advisers were behaving with their own departments. That was more under the control of the office. Perhaps the senior adviser or chief of staff of an office could have some role in monitoring the behaviour of advisers with their departments. They would have a better knowledge of that.

CHAIR —I want to raise another matter, which I know Senator Carr would have wanted to ask about. You would have heard other witnesses speak about this earlier. What is your response to the proposals in Don Russell's submission? From what I gather, you would tend to support some, if not all, of his views. Could you comment on that?

Dr Maley —I thought it was a very interesting idea to create a mechanism to give ministers an incentive to actually take responsibility for their staff. It was quite a punitive mechanism in the sense that if they didn't then their staff would testify before committees, which would be something that ministers would not take lightly. I thought that it was a very interesting idea; it was really directed in the right way, which was to force ministers to be more open and accountable to the parliament. I thought that was a good idea, but I would have to look further at the detail of it.

Senator MOORE —I have asked a couple of witnesses this question. With the exception of the people who study this as an academic exercise, do you think that anyone cares about the process? Is the issue of ministerial staffers' responsibility and the role with the Public Service resonating in the community? In your experience—because it is obviously an issue for you—is there a sense that the community cares?

Dr Maley —I am probably not well placed to answer that because I am an academic who takes a great interest in this, so my own sense of it is heightened. It obviously is reported in the media and that is some gauge, but I would not be able to comment on community views.

Senator MOORE —You have heard a lot of the evidence today about people's awareness of the system. We have heard quite divergent views. Some witnesses have said that there is a very strong awareness within the Public Service of the way the system works, what their responsibilities are. That, of course, is unwritten, but they have this knowledge. Then we have heard some other witnesses say that it is very difficult to find any information at all about the way particularly the members of parliamentary staff process operates. What is your version about just how freely available and how aware people are of the system?

Dr Maley —I found my analysis of how the advisers and the public servants interacted very interesting. The senior public servants who were dealing with advisers on a day-to-day basis had a very clear understanding of protocols and there was a clear distinction in their roles—clearly non-political or clearly political—and yet there was a lot of tension between them because they were overlapping in the work they did and coming from entirely different perspectives. I found that those senior public servants had a very clear idea of how to behave. They were not always happy about it. There was very vigorous pulling and pushing going on in the way they worked together, and there was a lot of tension, but that tension could be managed well or not managed well. In fact, I asked all the ministers about this tension and nearly all of them found it was a positive thing. They thought it was a creative tension. In fact, one minister said she thought that the department was a useful brake on overenthusiastic advisers and that advisers were a useful prod on departments to be more responsive. So ministers found the struggles that went on quite creative. They were not worried by that.

At the time of my study—I cannot speak for now—people were quite engrossed in those relationships. Unlike what has been said earlier today, advisers generally did not go to all the various levels within the government. They had certain assistant secretaries and first assistant secretaries that they were responsible for working with, and they had very stable relationships, where they were speaking to the same people many times a day, and those relationships developed, over time, ways of trusting and working together. It was not the scattergun approach of just ringing anyone in the department. There were very strong links between certain individuals in offices and certain individuals in departments, and they worked out how to work together.

I do not know whether I put this in my submission, but there was an interesting link between ministers and secretaries. Some of the ministers I interviewed deliberately met with their secretary on a weekly basis, with no advisers present. The ministers who did that saw that as a very important protection for them and a way to get direct communication from their departments. They wanted to know if there were problems with their staff. It was also a way, if a policy issue was stalled in the office with someone, for the secretary to simply say, `What happened about this and that submission?' The minister could then go out and be furious with an adviser about not bringing that to their attention. The ministers who had that process in place saw that as being very important.

Senator MOORE —Was there any correlation between those ministers and their various assessments of active, inactive and passive advisers that you define in your study?

Dr Maley —Probably not. There were certain ministers who were cautious operators—that is probably how I would describe those ones. The active advisers tended to work with very dynamic ministers—that is, ministers who had an agenda and wanted to see the Public Service implementing it. That would probably be the way that they were marked out.

Senator MURRAY —You said that advisers exist only as an extension of the minister. It seems to me that that statement was once made about public servants, and ministers were regarded as being absolutely responsible for their departments and everything that happened in them. They took full responsibility. Those days have long gone. Do you not think that your statement is a little historical now—in other words, things have moved on very quickly, even since the days when you did your survey?

Dr Maley —Actually, I do not think so, because the nature of public servants and ministerial advisers is still so different—the basis of their employment is so fundamentally different. Advisers are the personal staff of office holders. They are not public servants: they do not have the sorts of protections around their employment within a career service that public servants do; they are able to be terminated at will by their employer; and they do not have the sorts of responsibilities that public servants have. I think they are vastly different on the basis of their employment and their role, and that will always be the case, unless we decide to put them under the Public Service Act or something like that. That still pertains—it does not matter how many there are. They are a vastly different type of employee.

In terms of the change since the Keating period, there has not been a great change in numbers. I quoted the numbers seven and 3.5, but I noticed in the numbers provided by the Department of Finance and Administration that there are only 15 more staff in total today than there were in the Keating period, so we have not expanded much beyond that. Therefore, I do not think it is a myth and I do not think it is outdated to say that ministers can still—working so closely, as they do, with staff who are personally employed by them—take responsibility for those people.

Senator MURRAY —You have placed a great emphasis on the number of staff and on how they are employed. Isn't that, in many respects, irrelevant to the committee? What the committee is concerned with is whether such persons act at any time with executive authority which is distinct from that of the minister; in other words, they are not just going through instructions, they are actually acting on their own judgment. In those circumstances, because they are paid from the public purse and because they therefore are involved in the daily activity of government, from an accountability point of view they should be treated no differently to a public servant.

Dr Maley —I would agree were that the case, but my view is that that should never be allowed to be the case. Advisers have no justification for exercising or wielding any executive authority because they are unelected. Who are they? They do not have any status which would enable them to do that. My view is that what we have to do is prevent them from behaving like that and ensure that they only operate with the minister's authority when they are acting with the Public Service.

Senator MURRAY —If that is so, it brings us back to the discourse I had with Dr Shergold—and perhaps others did as well—about proscribing or outlawing certain kinds of behaviour through the act and accompanying the act with the additional expanded protection of a code of conduct which is properly enforced. The proposition I put when I asked the question was: would he accept that the act should say that an adviser may not act with executive authority or administrative authority and just outlaw it?

Dr Maley —I think a statement like that would be a good thing to have in a code of conduct. In my study, that was not how advisers saw themselves behaving, and it was not how ministers saw their advisers behaving. Ministers were generally not worried about what their advisers were doing. They felt they knew what they were doing and that they were operating within parameters that had been agreed or authorised by them. The ministers who I interviewed did not see that as a problem. The advisers I interviewed had a keen sense of when they needed to go back to the minister and get authorisation for something. That was something they were always monitoring to see if they could keep operating along a certain path or if they would need to go back to the minister and check. That was a very important dynamic in the relationship. As far as the public servants went, they had a concern about when advisers were operating with authorisation and if they were accurately reflecting the minister's views. That was always something that was in their thinking and they tested it out at times by saying, `I would like that in writing.' I think that will always be there. It is something that public servants dealt with by asking for things to be given in writing.

CHAIR —I would like to go to one other issue, which has not specifically been put forward by any of these submissions but is certainly raised in a number of them; that is, we have a range of different types of employees under the MOP(S) Act. Clearly most, if not all, of the focus on this issue of accountability relates to ministerial staffers.

It has been suggested by some others that maybe there needs to be a review, if you like, of the structure of the MOP(S) Act to take into account these different types of employees. Somebody I think mentioned that it was introduced in 1984. As a result of your work, do you have any comment about that? It certainly would have to be looked at if a proposal was ultimately adopted about accountability or even potentially the introduction of a code of conduct. We would have to look at who the act would apply to.

Dr Maley —Yes, I think it is very true that electorate officers are an entirely different type of employee to ministerial advisers that operate in Parliament House.

CHAIR —I do not know if I agree with that completely, except that they do give political advice, but they certainly do not have the relationship with the Public Service and/or the ministers. That is certainly the opposition's point of view.

Dr Maley —It is that interaction with the Public Service that really needs to be focused on with the code of conduct. However, they do have a lot of dealings with the public so, in a sense, you could imagine a code of conduct for them that may govern a number of other types of appropriate behaviours that are more focused on their dealings with the public perhaps. I think that could be a good idea to split the act in terms of dealing with the two types of staff.

CHAIR —I know both from my experience as a senator and from the experiences of my staff that oftentimes the problem you run into when dealing with the Public Service is getting the information out of them. It is not because they do not necessarily want to give it to you, it is because they have responsibilities to their staff and, increasingly, you run into difficulties concerning privacy considerations. We have a lot of representations from constituents who want us to pursue a matter on their behalf, and when you go to the taxation department or to Centrelink, for very legitimate reasons, you hit a wall and then you have to work your way through that. Oftentimes, we find that we have to go direct to the minister's office, to the DLO and even to the advisers in order to ensure that the issues are taken up. I thought I would just raise that at the end of the day. As there are no further questions, thank you for your appearance today and for your submission, Dr Maley.

Dr Maley —Thank you.

[5.17 p.m.]